Bombay High Court Full Bench Rules Illegal/Authorised Constructions Undertaken By Councillors Prior To Election Can Result in Disqualification

The Bench of Justices Z.A.Haq, V.M.Deshpande and Amit B. Borkar were hearing two petitions moved by candidates in the Nagpur Municipal Corporation Elections in 2017.

One of the petitioners, Tilottama, lost the election to Pragati. Thereafter, Tilottama submitted a representation under the Municipal Corporation Act contending that Mrs.Pragati and her husband had carried out illegal and unauthorized constructions at two flats and had encroached over 1250 sq.ft of land.

Praying for an inquiry regarding encroachment/illegal and unauthorized construction by Pragati and her husband, she sought a declaration that the structures be declared illegal and unauthorized and a report be forwarded to the Civil Judge Senior Division, Nagpur in terms of the legislation.

Acting on the representation, the Municipal Commissioner caused an inquiry in the matter and issued an order recording a finding that there were illegal/unauthorised constructions on the properties. However, the Municipal Commissioner left the decision of referring the matter to a Civil Judge to the general body of the Municipal Corporation.

Aggrieved, Tilottama filed Writ Petition seeking the Court's intervention in referring the matter to the Civil Judge Senior Division directly instead of referring it to the General Body, in terms of Section 12 of the Municipal Corporation Act.

At the same time, Pragati moved High Court averring that the Municipal Commissioner could not have examined the merits of the contentions raised by Tilottama, and on receiving the representation, the Municipal Commissioner should have referred it to the general body of the Municipal Corporation. If at all any inquiry was to be made on the representation, it could have been only by the general body of the Municipal Corporation, her petition stated..

After a Division Bench of Justices.Sunil B. Shukre and Shri.Avinash G. Gharote, found conflict between the view taken in the judgment given in the case of Edwin Francis Britto..vs..Municipal Corporation, Greater Mumbai, (2006) SCC Online 791 and Mallesh Shivan Shetty..vs..Kalyan-Dombivali Municipal Corporation, reported 2016(3) Mh.L.J. 901, the matter was referred to a Full Bench.

Subsequently, another aspect was referred for the consideration of the Full Bench, after the Division Bench differed with the ruling of Division Bench of the Court at Aurangabad in Umesh Deorao Pawale vs. State of Maharashtra and another)

Section 10(1D) reads:

(1D) A Councillor shall be disqualified for being a Councillor, if such Councillor has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorised structure violating the provisions of this Act or the Maharashtra Regional and Town Planning Act, 1966 or the rules or bye-laws framed under the said Acts; or has directly or indirectly been responsible for, or helped in his capacity as such Councillor in, carrying out such illegal or unauthorised construction or has by written communication or physically, obstructed or tried to obstruct any Competent Authority from discharging its official duty in demolishing any illegal or unauthorised structure. Such disqualification shall be for the remainder of his term as a Councillor from the date of the declaration of such structure to be illegal or unauthorised by the concerned authority under the provisions of the said Acts or, as the case may be, from the date of commission of the act of interference or obstruction by the Councillor against the Competent Authority.]

The questions posed were as follows:

(A) Whether the expression 'has constructed' as used in Section 16 (1D) of the BMC Act and Section 10 (1D) of the MMC Act would include an unauthorized/illegal construction, erected by a Councillor, before being elected as a Councillor so as to attract the disqualification?

(B) Whether the expression "has constructed" would include an unauthorized construction already in existence, when acquisition of the property is made by the Councillor, whether before or after he assumes office as a Councillor?

(C) Whether the reference to the Judge, as provided for, in Section 18 of the BMC Act and Section 12 of the MMC Act, can be done by the Municipal Commissioner as a person being incharge of the Corporation, or is required to be done by the General Body of the Corporation?"

(D) Whether the enunciation of law in the case of Umesh Pawale making distinction between pre-existing disqualification and the disqualification incurred during the term of the Councillor, and that the two contingencies had separate remedies,"Election Petition" and reference under Section 12 in the latter case, is correct ?"

On whether a past unauthorized construction by a Municipal Councillor would attract the disqualification

The Court, after analysing the objects and reasons of the legislation stated that a a plain and simple reading of the provisions made it clear that the legislature intended to put a curb on the illegal activity of illegal or unauthorized construction by a person who intends to get elected as a Councillor. Therefore, the words "has constructed" would encompass past-illegal activity as well.

The Court ruled,

"We hold that the expression "has constructed" used in Section 10(1D) of the Maharashtra Municipal Corporations Act, 1949 would also include an illegal/unauthorized construction erected by the Councillor before being elected as a Councillor so as to attract disqualification;

Importantly, the Court clarified that the illegal/unauthorised construction undertaken on property prior to acquiring the same would also disqualify a municipal councillor.

On whether an unauthorized construction prior to acquisition by a future/sitting Municipal Councillor would attract the disqualification

Answering this question, the Court emphasized that the disqualification extended to illegal/ unauthorised constructions done by the councillor, spouse, or dependant. Holding that a past unauthorised act that was not undertaken by either of these parties could not disqualify the Councillor, it was stated,

"The elected Councillor cannot be subjected to the extreme penal action of disqualification for the illegal or unauthorized construction not undertaken by him, his spouse or his dependent."

On whether the Municipal Commissioner was empowered to refer the matter to a Civil Judge without reference to the general body

After an analysis of the provisions of the legislation, the Court held that a reference had to be made to the general body before referring a matter relating to disqualification by reason of unauthorised constructions.

The Court said,

The language of Section 12 of the Maharashtra Act No.LIX of 1949 clearly and unambiguously lays down that the Municipal Commissioner has to make reference to the Civil Judge Senior Division only on a request made by general body of the Municipal Corporation. Section 12 of the Maharashtra Act No.LIX of 1949 does not confer any power on the Municipal Commissioner to act directly and make reference to Civil Judge Senior Division on his own.

On the question of the choice of remedy available to persons aggrieved

On this count, the court stated,

In our view, either of the remedy would be available to the "aggrieved person" having right to avail remedy as per Section 12 or Section 16 of the Maharashtra Municipal Corporations Act, 1949 and as per the Doctrine of Election of Remedies, it would be the choice of the "aggrieved person" to elect the remedy.

After answering the reference on these terms, the matter was placed before the Division Bench for further direction on facts.